Marissa Alexander is free but not yet in the clear

A Florida judge finally released Marissa Alexander from prison last week, just in time for the Thanksgiving holiday.

It’s the first time Alexander has been home in three years, since she was convicted of aggravated assault for firing a warning shot into the air during a confrontation with her abusive husband, Rico Gray. During the incident, Alexander alleges Gray strangled her and that she retrieved her gun and fired a warning shot in self-defense. There is no duty to retreat in Florida.

Alexander was originally convicted and sentenced to 20 years under Florida’s “10-20-Life” mandatory minimum statute which carries harsh sentences for gun-related crimes. The case garnered national attention when the court refused to accept Alexander’s ‘Stand-Your-Ground’ defense, even though she was using a licensed weapon, she was inside her own home at the time, she was defending herself, and no one was hurt.

In March, Alexander will face a new jury at her second trial which was awarded after an appeals court found that the judge improperly instructed the jury on self-defense. The appeals court ruled that the jury instruction at her original trial was improper because it shifted the burden of proof onto Alexander, requiring her to prove beyond a reasonable doubt that she was battered by Rico Gray. The burden of proof is supposed to be on the prosecution, who is required to prove that Alexander was not acting in self-defense. Alexander need only prove her claim of self-defense by a preponderance of the evidence, the lowest burden of proof.

State’s Attorney Angela Corey, who handled both Alexander and George Zimmerman’s trials, appears to be going full steam ahead into the second trial, despite calls for her to drop the charges and let Alexander go home.

The second trial will be a challenge for Alexander. Despite all of the public pressure since the Zimmerman verdict, to get Alexander out of prison, Angela Corey is planning on going forward with the second prosecution. State’s attorney’s have a lot of discretion to not proceed with a case but at this point and time, Corey insists that Alexander’s actions three years ago deserve punishment.

In an interview with theGrio this spring, Corey defended her aggressive prosecution of Alexander, saying that ‘Stand Your Ground’ shouldn’t apply “[b]ecause she was not fleeing from an abuser. A judge heard all the facts and evidence and said that this was not a case of ‘Stand Your Ground.’ You have to compare what [Marissa Alexander] said to what the victims said. There were two young children there as well. None of the physical evidence corroborates her story. There was the 911 call … and you can clearly hear the distress in Rico Gray’s voice. They had a verbal argument [in which] he said ‘I’m outta here,’ and she said, ‘I’ve got something for you.’”

At the second trial, this version of events will be explained for the jury but perhaps this time they will consider the fact that Mr. Gray admitted to threatening Alexander’s life, strangled her during the dispute at issue, and the jury will finally be able to weigh this fact under the proper legal framework for self-defense.

Under Florida law, in order for a defendant to claim self-defense they must meet a minimal burden of production, considering the following five factors: “There must be this minimal degree of evidence showing that the defendant was not the aggressor, that the threat defended against was imminent and otherwise unavoidable, that the degree of force used was proportional to the threat faced, that the defendant violated no duty to retreat, and that the defendant’s conduct was reasonable under the circumstances.”

Based on the relevant factors, Alexander did act in self-defense when she fired the warning shots, but because of the improper jury instruction the first trial resulted in a conviction. At her second trial, she is expected to have a much better chance to prevail because an appropriate application of the self-defense factors may flip the jury in Alexander’s favor. Angela Corey also has the power to set Alexander free for good by dismissing the charges, instead of going to trial a second time. That’s what Alexander’s supporters are asking for and the public pressure on Corey will be intense between now and the beginning of the second trial.

Public pressure, and not what takes place in the courtroom, may set Alexander free before or after a second trial. The media attention may force Corey to do the right thing and let Alexander out of prison permanently to get on with her life. A second jury may be familiar with some aspects of the case because of what’s been reported in the media and they may be more sympathetic to her defense than the first jury.

The question is whether either Angela Corey or the second jury will finally view Marissa Alexander as a victim, who had the right to defend herself from an abusive husband and who doesn’t deserve prison.